SPLC

The Iowa high court’s 4-3 decision blocks access to University of Iowa records concerning the alleged 2007 sexual assault. A female student athlete alleged that two Hawkeye football players sexually assaulted her in her dorm in the middle of the night. The two players were eventually removed from the team and charged. One pled guilty to “assault with intent to inflict serious injury,” and the other was convicted of misdemeanor assault.

The Iowa City Press-Citizen filed a request under the state’s public records law for reports of attempted or actual sexual assaults during that time period and correspondence between university officials about those incidents. The university initially released only 18 pages of documents, but withheld about nearly 3,000 more citing privacy concerns.

The newspaper sued and a state court judge in 2008 and 2009 ordered the release of additional records, some with information about students redacted. The university appealed, arguing that releasing even the redacted records would violate the Family Educational Rights and Privacy Act.

On Friday, the Iowa Supreme Court agreed. The court’s decision relies on 2009 regulations from the U.S. Department of Education that allow schools and colleges to withhold records containing information about students, even with all identifying information removed, if the school thinks the person requesting the information knows the identity of the students.

The newspaper argued those regulations should not be applied in this case because they went into effect after the lawsuit was filed, but the court disagreed. It found the Press-Citizen’s arguments were largely policy disagreements with the FERPA regulations.

“This feature of FERPA, however, derives from earlier determinations by Congress and the DOE that preservation of student confidentiality should be an overarching goal of the statute,” Justice Edward Mansfield wrote. “It is not our role to reexamine those decisions.”

One point of contention among the justices was FERPA’s exception for records released by court order. The majority felt that relying on that provision would gut the law.

“This would lead to a highly incongruous situation where FERPA would only have effect until the party requesting records chose to go to court, at which point FERPA would cease to have any effect at all,” according to Mansfield’s opinion.

In dissent, Justice Brent Appel argued that FERPA only prohibits schools themselves from having a “policy or practice” of releasing confidential education records.

“In my view, compliance with a judicial order pursuant to a generally applicable state public records statute does not amount to a policy or practice” on the part of the college, Appel wrote.

The high court also declined to address an argument raised by other media groups that releasing records based on the identity of the requester is unconstitutional. Mansfield wrote that the issue had not been raised by the Press-Citizen or in the lower court.

Media organizations, including the Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in support of the Press-Citizen, taking issue with the idea that a school can withhold records because it believes the party requesting the documents may know the identities of the students involved. The groups wrote that this practice could “discriminate against those granted public information and outright chill some persons from exercising their rights to inspect public records.”

“The U.S. Supreme Court consistently has held that ‘withholding information under [the federal Freedom of Information Act] cannot be predicated on the identity of the requester,’” the media coalition wrote in March 2010. “Although the Press-Citizen voluntarily disclosed its identity in requesting the records at issue, it did not need to do so and should not be punished for its own openness.”

Tricia Brown, Press-Citizen senior editor, said the newspaper staff was “a bit disappointed” in the outcome but that there is an underlying victory.

“Overall, it was a victory for us,” Brown said. “Just a very small amount [of the requested records] are being kept private by this ruling. The number we did receive is what we need to focus on.”

Brown said her staff has discussed appealing to the U.S. Supreme Court, but no decision has been made and the possibility has not been explored with the newspaper’s attorney. In order for the Supreme Court to take the case, the newspaper would have to show the dispute is fundamentally about federal – rather than state – law.

The Press-Citizen’s attorney, Paul Burns, said he was still reviewing the opinion and was not prepared to provide comment on the specifics of the ruling.

Tom Moore, spokesman for the University of Iowa, said the university is happy with the court’s decision.

“The university is pleased that the court supported our stance regarding the importance of protecting the privacy of our students,” he said.

In a written statement, Frank LoMonte, executive director of the Student Press Law Center, called on Congress to reform FERPA.

“Extremists in the U.S. Department of Education have hijacked a well-intentioned law about the confidentiality of academic records and, by their bizarre interpretations, transformed it into the Federal Education Rapists’ Protection Act,” he said. “The Iowa Supreme Court’s outlandish ruling is a wake-up call that Congress cannot ignore.”

By Brian Schraum and Sydni Dunn, SPLC staff writers